Boulden v. Dean

Offutt, J., delivered the opinion of the Court. On June 2nd, 1899, Charles M. Boulden executed a last will and testament, in which, after leaving to his wife, Mary H. Boulden, also called Mary H. M. Boulden, his residuary estate for life with power to use the principal when necessary if the net value of the estate proved to be less than $15,000, he provided: “Upon the death of my said wife the principal remaining of my estate shall be equally divided among my brothers and sisters. If my brother or any of my sisters shall die before the death of my said wife leaving issue said issue shall take the share that would have been taken by the brother or sister so dying had he or she been living at the time of the death of my said wife.” The will was probated December 23rd, 1907, and there were living at that time Mary H. Boulden, the widow, John R. Boulden, a brother, and Margaret A. Boulden and ¹⁰⁴ Laura V. Dean, sisters of the testator. Mary H. Boulden died March 12th, 1933, John R. Boulden survived the testator, but predeceased Mary H. Boulden, leaving, however, children to survive him and her.

Margaret A. Boulden, a sister, died in 1920, leaving to survive her three children, two of whom survive, and a third, now deceased, who left children now living. Laura Virginia Dean, the last surviving sister, died in September, 1925, leaving, to survive her, her husband, James E. Dean, and one son, Clarence B. Dean, who died in 1931, leaving to survive him his father and only heir at law, James E. Dean, the appellee in this case. On June 29th, 1931, Mary H. Boulden, as executrix of the will of Charles M. Boulden, filed her first and final administration account, under which she distributed to herself as life tenant $12,219.47. On May 20th, 1933, James E. Dean filed in the Circuit Court for Cecil County against George W. Boulden, administrator c. t. a. d. b. n. of Charles M. Boulden, Carrie B. McCullough, and W. Sterling Evans, executors of the estate of Mary H. Boulden, and against the living nephews and nieces of the testator, and the children of Mary A. McIntyre, a deceased niece, the bill of complaint in this case, in which he prayed the sale in lieu of partition of certain real estate of which the testator died seised, and also that George W. Boulden, administrator d. b. n. c. t. a. of Charles M. Boulden, be required to turn over to the remaindermen of the estate of Charles M. Boulden all moneys and property which may have come into his hands as such administrator, and that his letters be revoked, and that the executors of the estate of Mary H. Boulden segregate and turn over to such “remainder-men” all moneys and property held by Mary H. Boulden, as life tenant under the will of Charles M. Boulden.

To that bill all of the defendants except the executors of Mary H. Boulden demurred generally, and, that demurrer having been overruled, they took their appeal. The ground of the demurrer appears to have been ¹⁰⁵ that Charles H. Boulden, in that clause of his will which has been quoted, gave his residuary estate to a class to be composed of his brothers and sisters and the children of deceased brothers and sisters who were living at the death of Mary H. Boulden, and that, as Clarence B. Dean predeceased Mary H. Boulden without issue, he took nothing under the will, and that consequently James E. Dean, as the heir of Clarence B. Dean, took no interest in the estate of Charles M. Boulden, and has no interest in the subject matter of this suit. The contention of the appellee is that Laura V. Dean took a vested remainder under the will of Charles M. Boulden, subject to being divested “by her death leaving issue before the death of the life tenant,” and that, as she died during the life of the life tenant, her share in the Boulden estate vested in her son and only heir at law, Clarence B. Dean, and that upon his death it “passed to the plaintiff as his only heir at law.” To say that the intention of a testator is the controlling guide in the construction of his will, and that, when ascertained, it will be given effect in so far as it is consistent with established law, is to state principles which long since have crystalized into fixed and unyielding rules. Miller, Construction of Wills, sec. 9, and cases there cited.

Another principle as well recognized in theory, although not as uniformly applied, is that, where the language of the testator under consideration is so clear and plain as to leave no substantial doubt as to its meaning, considered in connection with all other language of the will, it will be accepted as conclusive and exclusive evidence of that intention, for the function of courts is to construe wills and not to write them, to ascertain an intent and not to create one. Id. sec. 10. Turning to the second and third clauses of the will in issue, their language leaves no room for any reasonable doubt that the intention and will of the testator was, first, to protect his wife against want, even though that involved the consumption of his entire estate; and, second, to give so much of his estate as remained at his ¹⁰⁶ wife’s death to his brother and sisters if they were then living, or, if they died prior to his wife’s death, to their issue per stirpes. He did not look beyond his brother and sisters and their issue, and the gift in remainder was complete and final in them.

To assume that by those provisions he meant to create a class composed of his brother and sisters living at the time of his wife’s death and the issue of those who- had died prior to that time, would not only do violence to the express language of the will, but would also be repugnant to settled principles of law which define the nature and incidents of such “classes.” A gift to a class is commonly understood as a gift of an aggregate sum to a body of persons uncertain in number at the time of the gift, to be ascertained at a future time, who are to take in definite proportions in accordance with a ratio dependent upon the number embraced in the class at the time of distribution. Stahl v. Emery, 147 Md. 126 , 127 A. 760 ; Jarman on Wills, *p. 232; Miller, Construction of Wills, ch. 9. Its antithesis is a gift to an individual either by. name or by some description sufficiently explicit to permit the donee to be identified as the particular individual for whom the gift was intended. In this case the manifest intention of the testator was that the remainder of his estate, after his wife’s death, should go in equal shares to his brother and sisters, each of whom would fake an undivided share, which upon the death of such donee prior to distribution would go to his or her issue, and not to an aggregate fund to be distributed among a class composed of the brother and sisters of the testator and the issue of such of them as predeceased the life tenant leaving issue surviving.

Rejecting the theory of a gift to a class, the question is, What estate or interest did the brother and sisters of the testator take under the third clause of his will? A well-established rule of testamentary construction is that, in the absence of some clear manifestation of a contrary intent, or some contravening principle of law, estates will be treated as vesting at the earliest possible ¹⁰⁷ moment (Miller, Constr. Wills, sec. 227), and consistently with that policy conditions .will be construed as subsequent rather than precedent, where such a construction is reasonable and is permitted by established legal principles, and where a contrary construction would defeat the early vesting of an estate. Id. “Estates will be held to be vested wherever it can fairly be done without doing violence to the language of the will.

To make them contingent there must be plain expression to that effect or such intent must be so plainly inferable from the terms used as to leave no room for construction. ' In doubtful cases the interest should be held to be vested rather than contingent, unless the instrument under consideration does not admit of such construction. The general principle is that any devise or bequest in favor of a person or persons in esse, whether such persons be individualized or treated as a class, confers an immediately vested interest upon the death of the testator, although the time of possession or enjoyment may be postponed, unless there be some clearly expressed desire or some manifest reason for suspending or deferring the time of vesting.” Miller, Construction of Wills, p. 630. Applying those principles to this case, considered independently or in connection with the whole will, every word of the clause under consideration leads to the conclusion that the testator intended that his brother and sisters should each take a vested remainder in his estate, subject to be divested only upon the condition subsequent that, if the brother or either or both of the sisters died before the life tenant leaving issue, the interest of the brother or sister so dying would be divested and vested In such issue who would take under the will in substitution for the brother or sister so dying. In Gray on Perpetuities, sec. 108, it is said: “If the conditional element is incorporated into the description of, or into the gift to, the remaindermen, then the remainder is contingent; but if, after words giving a vested interest, a clause is added divesting it, the remainder is ¹⁰⁸ vested.

Thus in a devise to A for life, remainder to his children, but if any child dies in the lifetime of A his share to go to those who survive A, the share of each child is vested, subject to be divested. But in a devise to A for life, remainder to such of his children as survive him, the remainder is contingent.” The suggestion advanced by the appellants that such a construction would violate the presumed intention of the testator to leave his estate to “those of his blood,” when examined, is found to have little force. For, while it may be true that, where an estate vests at the death of the testator, it may find its way into the hands of strangers, and, where it vests at some, more remote period, it will remain longer in his blood, yet it rarely happens that he is as much interested in remote and unknown relatives as in the immediate objects of his bounty, and the supposition that he would prefer that those who were closest to him in life should have some actual, tangible, and